Citation Nr: 0844150
Decision Date: 12/22/08 Archive Date: 12/31/08
DOCKET NO. 05-07 438 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependents' educational assistance under 38
U.S.C. Chapter 35.
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military and Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
O. Lee, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
December 1972. He died in November 2002, and the appellant
claims benefits as his surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania. The Board previously remanded
this case in April 2007. It returns now for appellate
consideration.
In January 2007, the appellant appeared at a Travel Board
hearing held at the RO before the undersigned Veterans Law
Judge. A transcript of that proceeding has been associated
with the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Subsequent to the issuance of the Board's remand in April
2007, the United States Court of Appeals for Veterans Claims
(Court) rendered a new decision in Hupp v. Nicholson, 21
,Vet. App. 342 (2007), pertaining to the statutory notice
requirements under 38 U.S.C.A. § 5103(a). Specifically, the
Court held that in the context of a claim for 38 U.S.C.A.
§ 1310 dependency and indemnity compensation (DIC) benefits,
section 5103(a) notice must include: (1) a statement of the
conditions, if any, for which a veteran was service connected
at the time of his or death; (2) an explanation of the
evidence and information required to substantiate a DIC claim
based on a previously service- connected condition; and (3)
an explanation of the evidence and information required to
substantiate a DIC claim based on a condition not yet service
connected. Hupp, 21 ,Vet. App. 342. The Court also held
that, unlike a claim to reopen, an original DIC claim imposes
upon VA no obligation to inform a DIC claimant who submits a
nondetailed application of the specific reasons why any claim
made during the deceased veteran's lifetime was not granted.
Id. Nevertheless, the Court noted that although independent,
the DIC claim and the underlying deceased spouse's claim for
benefits are inextricably related. Therefore, although not
required, a recitation of the information contained in the
deceased spouse's claims file would be helpful and would
prevent unnecessary effort on the part of the surviving
spouse in locating and providing documents already in
possession of VA. See Locklear v. Nicholson, 20 Vet. App.
410, 414-15 (2006).
Unfortunately, the February 2006 and May 2007 letters
provided to the appellant in this case do not meet the notice
standards as described under Hupp. In light of the new
statutory notice requirements, this issue must be remanded in
order to provide the appellant Hupp compliant notice of the
requirements for 38 U.S.C.A. § 1310 claims.
Since the claim for dependents' educational assistance under
38 U.S.C. Chapter 35 is contingent on the outcome of the
issue of service connection for the cause of the veteran's
death, appellate consideration of that issue must be deferred
as well.
Accordingly, the case is REMANDED for the following action:
1. The Agency of Original Jurisdiction
(AOJ) should provide the appellant with
VCAA notice as to the claim of service
connection for the cause of the veteran's
death. Specifically, the notice must
include (1) a statement of the conditions
the veteran was service-connected for at
the time of his death; (2) an explanation
of the evidence and information required
to substantiate a DIC claim based on a
previously service-connected condition;
and (3) an explanation of the evidence
and information required to substantiate
a DIC claim based on a condition not yet
service-connected. See Hupp v.
Nicholson, 21 Vet. App. 342, 352-53
(2007).
2. After providing the appellant with an
opportunity to respond, the AOJ should
readjudicate the claims of service
connection for the cause of the veteran's
death and dependents' educational
assistance under 38 U.S.C. Chapter 35.
All new evidence received since the
issuance of the December 2007
Supplemental Statement of the Case (SSOC)
should be considered. If the benefit
sought on appeal is not granted, the
appellant and her representative should
be furnished an SSOC and afforded a
reasonable opportunity to respond before
the record is returned to the Board for
further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
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action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).